On January 11, 2012, the Supreme Court decided Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, one of the most highly anticipated religious rights cases to reach the Supreme Court in decades. In its opinion, the Court recognized for the first time the "ministerial exception" and held that the Establishment and Free Exercise clauses of the First Amendment prevented a former "called" teacher in a Lutheran school from suing her employer for employment discrimination.

Cheryl Perich worked as an elementary school teacher at a school run by the Lutheran church. Eventually, Perich became a called teacher after completing certain religious studies and being elected a "commissioned minister" by the church congregation. In contrast to called teachers, the school also employed "lay" teachers who were not required to undergo the same extensive religious training. Teachers at the school performed generally the same duties regardless of whether they were called or lay teachers, but the school hired lay teachers only when called teachers were unavailable. In addition to teaching secular subjects, Perich spent about 45 minutes per day leading students in prayer, attending chapel service and teaching religious classes.

Perich became ill in 2004, requiring her to take a disability leave of absence for the first few months of the 2004-2005 school year. When she sought to return to work in January 2005, the school expressed concern about her ability to teach, given her physical limitations. The Hosanna-Tabor congregation voted to offer her a "peaceful release" from her calling if she agreed to resign from her teaching position. Perich refused to resign. Rather, she threatened to speak to an attorney to assert her legal rights. The school then terminated her employment for "insubordination and disruptive behavior" because, according to the congregation, she violated church doctrine by failing to address her grievances through internal church procedure.

On Perich's behalf, the Equal Employment Opportunity Commission ("EEOC") filed a lawsuit alleging that the school discriminated and retaliated against Perich in violation of the Americans with Disabilities Act. The district court granted summary judgment in favor of the school, holding that Perich's claims were barred by the ministerial exception, a doctrine adopted by all of the federal appeals courts that prevents ministers of a faith from pursuing employment discrimination claims against their religious employers. The U.S. Court of Appeals for the Sixth Circuit reversed, finding that the ministerial exception did not apply to Perich because her "primary duties" were secular.

In a unanimous opinion by Chief Justice Roberts, the Supreme Court reversed the Sixth Circuit, recognized the validity of the ministerial exception and held that it applied to Perich. The Court explained that the First Amendment prohibitions against excessive governmental entanglement in religious organizations prevent civil courts from getting involved in employment decisions relating to the selection of the institution's ministers. As the Court explained, "[s]uch action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs." While acknowledging the important societal interest in preventing employment discrimination, Chief Justice Roberts held that the First Amendment "struck the balance" in favor of protecting a religious group's rights to choose those individuals who will preach its beliefs and teach its faith.

The Court refused, however, to establish a bright-line test for deciding who qualifies as a minister, holding only that Perich's role as a commissioned minister and the nature of the functions she performed for the school were sufficient, in this case, to make her a "minister" for purposes of the ministerial exception. Of note, the Court rejected the Sixth Circuit's emphasis on the fact that Perich's religious duties consumed only 45 minutes of her day. Noting that the issue of whether one is a minister "is not one that can be resolved by a stopwatch," the Court held that time spent on particular activities cannot be considered in isolation.

In concurring opinions, Justices Thomas and Alito offered their views on how to define a "minister." Justice Thomas stated that he would "defer to a religious organization's good-faith understanding of who qualifies as a minister." Justice Alito's concurrence, with which Justice Kagan joined, adopted a functional assessment, noting that the formal designation of someone as a "minister" or the requirement that one be formally ordained in a faith is not dispositive. Rather, courts should focus on the function performed by the individual, applying the exception to an employee who "leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith." The extent to which the lower courts adopt either of these approaches remains to be seen.

Although this opinion should be welcome news to many religious organizations, such employers should take caution not to interpret the Court's decision too broadly. In particular, the Court specifically declined to address whether the ministerial exception bars breach of contract, tortious interference and other claims by employees against their religious employers. Nevertheless, this opinion provides some guidance on the employment rights of religious organizations.

Rachel Gonzalez, Mary Rogers and Patrick McCarthy wrote an article "NLRB Eases Organizing of Temporary Workers" for CBIA’s H&R Safety Newsletter on the impact of the recent decision of the National Labor Relations Board (NLRB).

Dan Schwartz and James Leva wrote an article, "Where New Conn. Ban-The-Box Law May Be Headed," for Law360. The article outlines what employers need to know about Connecticut's recently enacted "ban-the-box" law, titled "An Act Concerning Fair Chance Employment."

Michael Furey was quoted in an article, "NJ Panel Grills Hospitals Over Discovery In Horizon Row," in Law360. Day Pitney is representing five New Jersey hospitals in a lawsuit against Horizon Healthcare, relating to its new, multi-tiered health plan called OMNIA. Furey advocated on behalf of the five hospitals on Wednesday before a New Jersey appeals court that Horizon should turn over a consultant's report and certain agreements relating to how Horizon categorized hospitals under its controversial OMNIA Alliance program and the impact of OMNIA on the hospitals. These Tier 2 hospitals are alleging various claims, including breach of contract and citing concerns that being ranked in the lower tier of the program will cost them business. Horizon contends the sought-after materials, including a financial analysis, strategic alliance agreements and rate agreements between the insurer and OMNIA network hospitals, contain trade secret and confidential information. "If we're going to prove our hospitals should be Tier 1 alliance members, we need the documents and the information," Furey said.

Hartford, Conn., May 26, 2016 - Day Pitney LLP is pleased to announce that Employment and Labor attorney Albert Zakarian has been chosen as a Lifetime Achievement winner of The Connecticut Law Tribune’s second annual Professional Excellence Awards 2016. The Professional Excellence Awards 2016 recognize 28 lawyers, who were chosen from over 60 nominees, as either Lawyer of the Year or Lifetime Achievement recipients, according to The Connecticut Law Tribune. The Lifetime Achievement Awards honor "attorneys who have excelled over a career."

John McLafferty was quoted in an article, "Final overtime regulations less drastic than feared," in Massachusetts Lawyers Weekly. In the article, McLafferty discusses how the Department of Labor’s final revised federal overtime regulation will impact businesses. "The reality is that the rule made more people eligible for overtime; it didn’t create any obligation for employers to pay more overtime," he said. McLafferty added that the regulation’s impact on employees could have a wider effect on office culture and policies, which may affect a company’s ability to attract and retain workers. In addition, he noted that employers should take this opportunity to ensure that all of their employees are properly classified for overtime purposes.

Albert Zakarian has been chosen as a winner of The Connecticut Law Tribune's second annual Professional Excellence Awards. The awards recognize two dozen lawyers for outstanding service to the profession during their long careers. The publication received more than 70 nominations. Profiles of awardees will appear in the Law Tribune in May. An event will also be held in May to recognize the winners. More about the awards can be found here.

Howard Fetner was quoted in an article, "Judge Allows Company to Withhold Benefits From Departing Employee," in The Connecticut Law Tribune. Fetner represented Community Health Center, Inc. (CHC), a statewide company that provides health care services to low-income patients, in a case in which a former CHC employee sought to recover compensation for unused paid time off. Following a trial, the court ruled in favor of CHC, reinforcing an employer's right to condition the payment of compensation for accrued fringe benefits upon an employee's giving a specified amount of advance notice of termination.